#### STATE v. LOUISE WALKER.

(Filed 17 March, 1920.)

1. Criminal Law — Warrants—Amendments—Vagrancy—Suppression of Prostitution — Statutes—Sentence—Judgments.

The punishment under the act for the suppression of prosecution, ch. 215, Laws of 1919, exceeds an imprisonment of thirty days or a fine of fifty dollars, and where a prosecution is heard in the Superior Court on a warrant issued by the mayor of a town, and not on appeal from the recorder’s court, nor upon indictment found by a grand jury, and an amendment has been allowed in the language of Rev., see. 3740 (7) defining vagrancy, and limiting the punishment to a fine of fifty dollars or imprisonment for thirty days, a sentence upon conviction, for twelve months cannot be sustained.

3. Criminal Law — Warrants—Second Offense.

Where the statute imposes a greater punishment for a second criminal offense, the first offense must be charged in the warrant, being a portion of the discription of the offense charged, for the imposition of the greater sentence.

S. Criminal Law — Warrants—Amendments—Reduced to Wilting — Courts Discretion — Orders, Self Executing.

Where a warrant in a criminal action charges the defendant with “being a vagrant,” it is within the discretion of the Superior Court judge to allow an amendment specifying the particular act under which it has been issued, in this case, Rev., sec. 3740 (7) ; and while it is the better practice to reduce the amendment to writing at the time, the order is self executing, and failure to do so does not destroy its legal effect.

4. Appeal and Error — Criminal Law — Sentence—Judgment—Statutes— Case Remanded.

Where a conviction for vagrancy has been legally had under Rev., see. 3740 (7), and the sentence has been imposed of imprisonment for twelve *731months allowed under the Act to Suppress Prostitution, eh. 215, Laws of 1919', the case will be remanded for the imposition of the proper sentence.

Appeal by defendant from Daniels, J., at tbe December Term, 1919, of LeNOIB.

Tbe defendant was convicted before tbe mayor of Kinston on a warrant charging tbat sbe “did unlawfully and wilfully violate a law of tbe State of North Carolina, No., sec., by being a vagrant,” and appealed to tbe Superior Court, where sbe was again convicted.

After verdict, tbe defendant moved in arrest of judgment, and tbe solicitor for tbe State asked to be allowed to amend tbe warrant. Tbe motion to amend was allowed, but tbe amendment, which added to tbe warrant, subsec. 7 of sec. 3Y40 of the Revisal, defining vagrancy, was not reduced to writing until after tbe term of court expired. Tbe defendant excepted.

Tbe motion in arrest of judgment was overruled, and defendant excepted.

His Honor then sentenced tbe defendant to twelve months in jail, finding in tbe judgment tbat this was a second conviction for tbe same offense, and tbe defendant excepted and appealed.

Attorney-General Manning and Assistant Attorney-General Nash for the State.

Joe Dawson for defendant.

Allen, J.

The sentence of imprisonment for twelve months cannot be sustained under cb. 215, Laws of 1919, an act passed for the repression of prostitution, because the punishment for all the offenses condemned in tbat act exceeds imprisonment for thirty days, or a fine of $50, and this prosecution was beard in the Superior Court on a warrant issued by the mayor, and not on appeal from the recorder’s court, nor was any indictment found by a grand jury.

It is also clear from the amendment allowed tbat the court was not proceeding under the act of 1919, as it is in the language of sec. 3740, subsec. 7, of the Revisal, which defines vagrancy, and limits the punishment to a fine of $50 or imprisonment for thirty days.

Nor can the judgment be approved on the ground tbat this is a second conviction for the same offense, because the first conviction is not alleged in the warrant. This was the precise question decided in S. v. Davidson, 124 N. C., 839, and it is in accord with the authorities elsewhere.

“Where, in case of repeated convictions for similar offenses, tbe statute imposes an additional penalty, an indictment for a subsequent offense must allege tbe prior convictions, since such convictions, although *732they merely affect the punishment, are regarded as a portion of the description of the offense.” 22 Cyc., 356.

The judgment must therefore be set aside, and the question remaining for decision is whether the warrant is sufficient to sustain any judgment.

It charged vagrancy before amendment, which seemingly is as specific and definite as the warrant, which was held to be valid in S. v. Moore, 166 N. C., 284, but, however this may be, the court, exercising its discretion, allowed an amendment, which it had the power to do (S. v. Cauble, 70 N. C., 64), and the amendment points to the subsection of the act defining vagrancy, which the defendant is alleged to have violated, which is sufficient in a warrant, with which the courts deal more liberally than with indictments.

The fact that the amendment was not reduced to writing at the time it was allowed does not destroy its legal effect, but it is the better practice to require this to be done.

In S. v. Yellowday, 152 N. C., 793, there was a motion in arrest of judgment by the defendant, and one to amend by the State, as in this case, and the amendment allowed, a material one, and it was held that the order of amendment was self-executing, although the amendment was not reduced to writing.

The Court says: “It appears from the record that the court ordered an amendment of the warrant, by the insertion therein of the words, 'without a license so to do,’ but the words were not actually inserted in the complaint or the warrant by the solicitor. The order of the court, as has been decided by this Court several times, was self-executing. In the case of Holland v. Crow, 34 N. C., 280, Chief Justice Ruffin, for the Court, says: 'The variance between the relators in the petition and the scire facias is cured by the order for amendment. It is true, the amendment was not actually made. But the scire facias was issued upon the assumption of the amendment, and all the subsequent proceedings were based upon the supposition that one was as properly a relator as the other, and in such cases the course is to consider the order as standing for the amendment itself.’ He cited the case of Ufford v. Lucas, 9 N. C., 214, in which it is held, as it was in the case just cited, that where, during the pendency of the suit, leave is obtained to amend the writ and change the form of action, if such amendment be not made on the record, and the suit be tried in its amended form or as if the amendment had been actually made, this Court will consider the case as if the amendment had been properly inserted in the writ, warrant, or complaint at the time the order was made by the court. This is a most just and reasonable rule, and is essential to the due administration of the law.”

In this case no objection was made at the time to proceeding as if the amendment had been drawn out, nor is there any claim that the *733amendment appearing in tbe record is not tbe one ordered by tbe court.

We are therefore of opinion tbat judgment may be pronounced on tbe warrant as amended, and following tbe precedent in S. v. Taylor, 124 N. C., 803, and in other cases tbe cause is remanded in order tbat judgment may be entered upon tbe verdict under tbe Yagrancy Act.

Remanded.